This is an appeal from an order of the trial court which granted summary judgment in favor of appellee. The sole issue presented for review is whether the trial court’s grant of summary judgment was proper. 1 For the reasons set forth below, we affirm.
Appellant commenced a civil action against Andino, docketed at No. 87-C2421, on November 5, 1987. Andino never entered an appearance nor otherwise defended the action. Consequently, a default judgment on the issue of liability was entered against Andino on April 4, 1988. A non-jury trial on the issue of appellant’s damages was subsequently held on August 17, 1989. Andino again failed to appear or enter a defense, and appellant was awarded $60,000.00 in damages. Judgment on the award was entered on August 21, 1989.
Following the entry of judgment against Andino, appellant notified appellee of the award and requested that appellee pay her $50,000.00 in uninsured motorist benefits. Appellee denied appellant’s request, and indicated that the question of appellant’s entitlement to uninsured motorists’ coverage must be submitted to arbitration since the policy expressly provided that appellee was not bound by any judgment obtained without its consent. On October 10, 1989, appellant initiated this declaratory judgment action in which appellant sought to have the judgment entered against Andino declared binding on appellee. Each party
Although not addressed by either of the parties, we must first ascertain whether the declaratory judgment action was properly before the lower court. With regard to this matter, the Declaratory Judgment Act expressly provides that a party is not entitled to declaratory relief with respect to any “[proceeding within the exclusive jurisdiction of a tribunal other than a court.” 42 Pa.C.S.A. § 7541(c)(2). § 7541(c)(2) has been held applicable to arbitration proceedings, and it is well-settled that a declaratory judgment action may not be entertained with respect to matters that are within the jurisdiction of the arbitrators.
See Jewelcor, Inc. v. Pre-Fab Panelwall, Inc.,
However, the appellate courts have also recognized that “[wjhere ... a claimant challenges a provision of an uninsured motorist clause as being contrary to a statute, the
[t]he law is clear that, although a case turning on the application or construction of an uninsured motorist clause is within the exclusive jurisdiction of the arbitration system, when the issue is whether a particular provision of the contract is contrary to a constitutional, legislative or administrative mandate, the courts properly exercise their jurisdiction over the entire matter.
Kester v. Erie Insurance
Exchange,
In applying these principles to the facts of this case, we must first examine the policy and determine whether the parties intended to restrict the jurisdiction of the arbitration panel. With regard to this matter, the policy provides:
Deciding Fault and Amount
Two questions must be decided by agreement between the insured and us:
1. Is the insured legally entitled to collect damages from the owner or driver of an uninsured motor vehicle or underinsured motor vehicle; and
2. If so, in what amount?
If there is no agreement, these questions shall be decided by arbitration at the request of the insured or us. The Pennsylvania Uniform Arbitration Act, as amended from time to time, shall apply____ The written decision of any two arbitrations [sic] shall be binding on each party.
See
Appellee’s Cross-Motion for Summary Judgment, Ex
The dispute in this case does not pertain to the above-quoted language. Rather, the parties disagree as to the effect and operation of the following language contained in the policy:
Consent to Be Bound
We are not bound by any judgment against any person or organization obtained without our written consent.
See Appellee’s Cross-Motion for Summary Judgment, Exhibit A at 17. Appellee seeks to invoke this clause so that appellant will be required to prove the amount of her damages, if the arbitrators determine that appellant is entitled to recover uninsured motorists’ benefits under the policy. Appellant, however, objects to the application of the provision on the basis that it contravenes public policy by allowing an insurer to ignore a validly entered judgment. When viewed in this context, it is apparent that the issue in this case does not relate to either of the questions which the parties agreed to submit to arbitration, but involves a question of whether a provision in the insurance policy violates a constitutional, legislative or administrative mandate. Accordingly, we find that the trial court properly exercised jurisdiction over this dispute.
Having reached this conclusion, we must now ascertain whether summary judgment entered in favor of appellee was proper. Summary judgment may only be granted “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and
In support of her claim that the trial court erroneously entered summary judgment in favor of appellee, appellant initially argues that the contract is devoid of any language which would permit the insurer to ignore a verdict entered by the trial court. Essentially, appellant suggests that because the insurance policy only refers to judgments, and not verdicts, appellee is bound by the verdict entered in appellant’s favor. Appellant cites no authority for this novel interpretation, nor has our own research uncovered any cases which have interpreted policies in the manner posited by appellant. We nevertheless find appellant’s reasoning to be fundamentally flawed.
We first note that the record is devoid of any evidence that a
verdict
was entered against Andino.
See
Appellant’s Motion for Summary Judgment, Exhibit E (list of docket entries for appellant’s action against Andino). Instead, the record reveals that after the non-jury trial was held on August 17, 1989, a
judgment
was entered on August 21, 1989.
See id.,
Exhibits A (copy of order, dated 8/21/89, which enters judgment in favor of appellant and against Frank Andino), and E. Further, it was procedurally impossible for a verdict to have been entered in the action against Andino because the case was tried before a judge sitting without a jury. In such instances, the trial court renders a
decision,
not a
verdict. See
Pa.R.C.P., Rules 227.4(1)(a) and (b) and 1038(b) and (c) (which make clear the distinction between decisions and verdicts: verdicts are
More importantly, the insurer’s use of the term “judgment” necessarily includes the terms “verdict” or “decision of the trial court”, since a judgment is nothing more than the official entry of a verdict or decision of the trial judge upon the docket. See e.g., Pa.R.C.P., Rules 227.1, 227.4(1)(b), and 1038, 42 Pa.C.S.A. Consequently, if appellee cannot be bound by any judgments which are obtained without its consent, then it follows that appellee cannot be bound by any decisions or verdicts which form the basis of such judgments. Accordingly, appellant’s attempt to avoid application of the consent clause on this basis must fail.
In her next argument, appellant asserts that the clause should not be enforced because it violates public policy, in that the enforcement of such clauses results in a waste of time and judicial resources by forcing claimants to prove liability and damages before two separate tribunals. Appellant again cites no authority in support of this proposition, however, we find her analysis to be erroneous.
Although appellant claims that time and judicial resources will be unnecessarily wasted if consent clauses such as that found in the policy are enforced, appellant’s argument ignores the fact that any waste which may have occurred in this case is solely attributable to herself, and not the insurer. The insurance policy clearly delineates appellant’s duties under the policy and provides:
REPORTING A CLAIM—INSURED’S DUTIES
1. Notice to Us of an Accident or Loss.
The insured must give us or one of our agents written notice of the accident or loss as soon as reasonably possible----
4. Other Duties Under Uninsured Motor Vehicle and Underinsured Motor Vehicle and Death, Dismemberment and Loss of Sight Coverages.
The person making claim also shall: ... c. under the uninsured motor vehicle and underinsured motor vehicle coverage: ...
(3) send us at once a copy of all suit papers if the person sues the party liable for the accident for damages.
See Appellee’s Cross-Motion for Summary Judgment, Exhibit A, at 4-5. Further, the consent clause clearly states that the insurer is not bound by any judgments which are obtained without its written consent. See id., at 17.
In examining the policy, it is evident that an insured must notify the insurer of the loss and must further inform the insurer of any action which is commenced against the tortfeasor. The insured is also required to obtain the insurer’s written consent in order to bind the insurer to any judgment which may be obtained. From our review of the record, it does not appear that appellant has attempted to comply with the above procedures. Therefore, any unnecessary delay or waste of judicial time and resources in this case has resulted not from the enforcement of the clause, but from appellant’s failure to follow the procedures delineated in the policy. Thus, appellant cannot now be heard to complain regarding waste and delay which she herself has occasioned.
Aside from her mention of time and judicial resources, appellant is unable to identify any other public policy which would be undermined by the enforcement of the consent clause. Although no case has previously addressed this subject, we find that the consent clause furthers, rather than violates public policy. First, we note that appellant seeks to apply the judgment against appellee, who was not a party to the judgment and who did not have notice of the litigation or an opportunity to participate therein. As appellee correctly observes, such a result would be inimical to appellee’s due process rights. At a
More importantly, the enforcement of the judgment against appellee would be contrary to the law of this Commonwealth, which requires an insured to obtain an insurers’ consent before prosecuting an action against an uninsured motorist to judgment.
See
40 P.S. § 2000(e)(2) and
Nagle v. Allstate Insurance Co.,
As discussed above, appellee sets forth additional arguments in its brief as to why it should not be bound by the judgment. These theories relate to the doctrines of
res judicata
and collateral estoppel, neither of which apply to this case, since the requisite elements have not been met.
See City of Pittsburgh v. Zoning Board of Adjustment of City of Pittsburgh,
In sum, we reject appellant’s specious suggestion that the consent clause can only be applied to judgments and not verdicts. We further find that the consent clause does not violate public policy. Contrary to appellant’s arguments, any attempt to bind appellee to a judgment that was obtained without its consent would be contrary to the law of this Commonwealth. More importantly, such an attempt would result in the deprivation of appellee’s due process right to notice and an opportunity to be heard. We therefore conclude that the consent clause is valid and enforceable against appellant. Having made this determination, the facts reveal that appellant never obtained appellee’s consent to the judgment. Because appellee cannot be bound by a judgment that was obtained without its prior consent, it is clear that appellee is entitled to judgment as a matter of law. Accordingly, we affirm the trial court’s grant of summary judgment in favor of appellee.
Order affirmed.
Notes
. In reviewing the brief filed by appellee, we note that appellee has filed a counterstatement of questions which purports to contain five separate issues. As previously recognized by this court, " ‘[a]n appellee who files no counter-appeal cannot raise issues not raised by appellant.' ”
Arcidiacono v. Timeless Towns of the Americas, Inc.,
. We have elected to use the copy of the insurance policy attached to appellee’s motion, as it is the only copy of the policy in the certified record which appears to contain a complete version of the policy.